Today I’m going to take a slight detour with the class. The live class at the law school is canceled today because I am in Colorado Springs speaking at the Superstars Writing Seminar. So what I thought I would do today is share with you some of the thoughts that I am including in my talk at the seminar. My session is basically a primer on copyright and other intellectual property law for authors. For class today, I am going to focus on two of the most important parts of my talk: “a bundle of sticks” and “can I?”

A Bundle of Sticks

Understanding this metaphor is important to making proper business decisions regarding one of your primary assets as a writer – your copyright.

In law, we use the metaphor of a bundle of sticks to describe property. Typically, a lay person (i.e. someone who is not trained as a lawyer) would think that property is a thing – a ring, a car, or a house. For a lawyer, property is an intangible set of rights. The thing – the ring, the car, the house – are the subjects of property. They are the things to which the rights attach.

A bundle of sticks is the metaphor we use to describe that intangible set of rights. We describe it as a bundle of sticks rather than saying it is a single stick because each of those sticks can be owned by different people. For example, if someone owns an easement right of way over your land, then ownership is split. You own most of the sticks in the bundle, but the owner of the easement owns a few sticks in that bundle.

How does this relate to copyright?

Copyright is a type of property. Instead of being an intangible set of rights that attach to a physical object, copyright is an intangible set of rights that attach to an intangible object – the work of authorship. So copyright can also be thought of as a bundle of sticks.

Why is understanding this so important for writers?

You can (and often should) transfer the sticks in that bundle separately. In fact, one of the most important parts of negotiating any contract is looking at which sticks are transferred and making certain that you are not transferring more sticks than what you are being paid for. If someone is paying you a value that is appropriate for book rights in North America but you are granting that person all of the sticks in the bundle, all of the copyright, then you are giving away value.

Can I?

I frequently get questions from authors along the lines of “Can I do this”? An example would be “Can I use song lyrics in my short story?”

That is a question that seems straightforward but I maintain that it is really three questions. Or at least, writers should think about it as three different questions. Here are the three questions for traditional publishing:

What will a court of law determine?

Will I have to defend a suit by a copyright holder?

How will an editor/publisher react to the possibility of a lawsuit?

For indie publishing, the third question is slightly different:

What will a court of law determine?

Will I have to defend a suit by a copyright holder?

How will a retailer react to a take-down notice from the rights holder?

The first question is what both the writer and the lawyer typically think of first. It is important and it impacts the other question, but it may not be what drives your ultimate decision.

The second question (“Will I have to defend a suit by a copyright holder?”) may drive your decision because having to litigate a lawsuit may cost you a lot of money and time, even if you ultimately win the case in slam dunk fashion. You have to ask yourself if this particular part of your story, the element that may get you sued, is worth the risk of that cost. What is your purpose? Is it to make a living? Is it to make a point that requires the questionable content?

The third question (“How will an editor/publisher react to the possibility of a lawsuit?”) keys on your ability to get past a gatekeeper in traditional publisher. If you include something in your story or novel that scares an editor or publisher about the possibility of getting sued, then that may make the editor reject your work in favor of a work of similar quality that does not carry the same risk. For indie publishers, you have to worry about a retailer (e.g. Amazon) pulling your book if they are threatened by a rights holder.

Thus, questions two and three quite often will dictate your choice even without having a full answer to the first question or even when the answer to the first question is that you would win the lawsuit.

I’ve discussed this in detail previously, a discussion you can find here.

Judge Hand started his analysis by pointing out that if literal copying were required in order for infringement to be found, then it would be painfully easy for someone to copy a work while escaping liability. Would you think someone could just change the names of the characters in a book and thereby escape from copyright infringement? Clearly not. Thus it should be apparent that an exact word for word copy is not necessary for a plaintiff to make out a basis for infringement.

However, if the copier only takes the most basic premise, then the copier may not be an infringer. Note that the case is not talking about a motion picture that happens to be similar to a play. The analysis and conclusion assumes that the creators of the movie did take the premise from the play – and still found no infringement.

But when the plagiarist does not take out a block in situ, but an abstract of the whole, decision is more troublesome. Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their ex- pression, his property is never extended.

This series of abstractions is at the heart of what we call the idea/expression dichotomy. Ideas are not protected but expression is. Thus, copying ideas is not infringement while copying expression is. But what constitutes “idea” and what constitutes “expression”? That’s where the series of abstractions comes into play.

So, you’ve written a book that has a plot similar to another book. Can you do that? Well, we could do the analysis described by Judge Hand. We could apply the idea/expression and try to answer the question of what a court would conclude. But we should also consider the likelihood we might be sued and whether an editor we might submit our book to might not want to publish our book because it is too similar to the other book.

The answers to the second and third questions may be more influential in your decision-making than the answer to the first question. Now, the questions are all related. The closer the call is on the first question, the more certain we are that the action is infringing, the more likely we will reach negative answers on questions two and three.

Your example would be a multi-step analysis – with the issue of whether the new story was transformative coming near the end.

For a new Santa Claus story, we would first ask if it (either its story or its character) infringes a previous work that is protected by copyright. The old story from which it borrowed might not be protected by copyright. It might be in the public domain by virtue of its copyright having expired. Certainly, many St. Nicholas stories are old enough that they are no longer protected by copyright. If so, no infringement.

The new Santa Claus story might only copy ideas and not any expression. If so, it does not infringe.

If it does infringe, then we would ask if the use was a fair use such that infringement would be excused. This is when we would consider how transformative the use was, as one factor among several.

Note that “transformation” language might also come into play if we were asked to determine if the new story was a derivative work or if the new story itself contains copyright protectable expression.

Though we have hinted at much of this so far, we will explore it in more detail later in the course.